UPDATED AUGUST 3, 2018

As New Jersey criminal defense attorneys, we are sometimes asked, “can police track my cellphone without a warrant?” Police do all sorts of things in their investigations, but if they are supposed to have a warrant and they do not get one, then the evidence that they gather may be inadmissible later. It could even result in charges being dismissed all together.

Police may want to get the cellphone location data for the cellphone carriers in order to find out where people were located at specific time. In 2009, the New Jersey legislature added new provisions to the New Jersey Wiretap and Electronic Surveillance Control Act, which added extra obligations on law enforcement. It does not explicitly say that police must get a warrant before tracking someone’s cellphone location. But since 2009 it became the custom of most law enforcement to obtain a warrant before doing so. Before 2009, most law enforcement did not obtain such a warrant.

In several cases on appeal, people arrested for crimes argued that they should never have been arrested since the police gathered their cellphone location data without a warrant, and were therefore able to track where they were going. Most recently, the New Jersey Supreme Court heard oral argument in the case of State v. Earls on this issue. The prosecutor’s theory was that no one has any kind of expectation of privacy in their location while in public places. So a warrant was not required. The defense argues that people DO have an expectation of privacy in their cellphone location data, which is stored privately at the cellphone carrier’s facility. If warrants are not obtained, argues the defendants, police can track the locations of almost any person at any time, for no reason at all, and with no judicial oversight.

It will be interesting to monitor the situation, because right now it is an unresolved issue. When the Supreme Court does make a ruling on the issue, we will have a clear rule about whether or not the police need a warrant before gathering cellphone tracking data.

Remember, the police and prosecutors have teams of people working to put alleged criminals in jail. In the process, they may overstep their bounds or arrest innocent people. If you have any question or you or a loved one were accused of a crime, please do not hesitate to contact us for a 100% free consultation.